Youtube, Creative Commons And Why It's OK For You To License Your Artwork Any Way You Want

from the it's-still-yours-isn't-it dept

Youtube (finally) introduced a Creative Commons licensing option for uploaders on June 2nd, allowing users to make their original works freely available to others to remix and build upon without worrying about infringement charges down the road. At this point it's only implemented a CC-BY option, but it expects to introduce others further down the road. The key to this license is that it allows others to use these licensed videos commercially, which has proven to be a sticking point for certain parties with a vested interest in keeping uploaded contributions licensed solely to the creator.

Two dissenting opinions appeared nearly immediately. The first argument against the CC-BY license appeared at the Viralfier blog, where Scott Burke has decided that CC licensing is the worst thing ever (or "evar"), running down 6 reasons why you shouldn't use this new option:

Take another example. MasterCard wants to use your sweet snowboarding video in a worldwide advertising campaign. Great! Except you already gave the rights away, when you tagged it with a Creative Commons license. You might get a brief attribution at the bottom of the ad — but wouldn’t you also want a licensing fee?

Well sure, Scott. Who wouldn't? But it's not as if the video was doing much on its own, all locked down and whatnot. And hindsight, while having perfect 20/20 vision, is hardly what one would call a "business model." There's also exposure and the fact that the original video still belongs to you.

His next point deals specifically with the "exposure" aspect, showing how that doesn't work either:

klaatu42‘s recent hit viral video, Ultimate Dog Tease (you know, “The maple kind?”), has received 35 million views to date, and his channel has 385,000 subscribers. The source video that it’s based off of, is by IcePrincessXXIV. klaatu42 gives her about as prominent a link as you can get in the video.

How many subscribers did that translate into for IcePrincessXXIV? 600. A full 0.15% of the action.

Those are admittedly terrible numbers, but is counting subscriptions really a viable measurement? I watch tons of videos (and see tons of overlaid ads) on Youtube and I think I'm subscribed to maybe two channels. (And that's just me. Add in my family and everything goes exponential.) Does this mean that someone's successful use of your video instantly translates to jacksquat on your end? I hardly think so.

Points 3 and 4 deal with two familiar "arguments," the first being that if you give something away for free, you obviously think your artwork is worth nothing. This fallacy is hardly worth arguing but can anyone out there think of anything valuable that's being given away for free as part of a hugely successful business model? (Try Googling it.) The other has to do with your limited legal recourse in cases where your video has been misused or infringed upon. Good point. Regular copyright holders never have these problems and their legal battles run very smoothly because of that fact!

The real reason for this post emerges in point 5, where Scott encourages readers to join Viralfier's closed beta. Because Viralfier is "a startup which is developing a 'game-changing toolkit for creating and marketing viral videos.'" Hmmm. Suddenly, this advice seems a tad off. (Point 6 seems to have something to do with making an 8-bit cat "cry." Double-hmmm.)

The second opinion is more of the same, but much briefer: Won't work. Too crowded. Not interested. I ingested several grains of salt (80% of my RDA for sodium) when greeted with "ReelSEO: The Online Video Marketing Guide" upon opening this link.

Why do they care? Or, more realistically, why do they pretend to care?

Two reasons:

1. In their minds, art is always zero-sum. If someone takes your artwork and builds on it successfully, then it must logically follow that no one but this "someone" will ever be able to make money from that particular piece of art. Apparently, artwork can be "used up."

2. The gatekeepers and artists tied to these systems can't compete with free. This isn't necessarily the kept artists' fault. They often have no say in the matter. But because the industries aren't interested in competing with free, then the free option needs to be removed.

It gets uglier when you, as an artist, go head-to-head with this mindset. The accustations will fly. "You obviously feel your artwork is worth nothing." "Don't you care what happens to something you created?" "There's no legal recourse with Creative Commons." "You must be an idiot/untalented hack if you don't do things the way they've always been done."

I wonder why they just can't let artists distribute their art the way they want to, rather than using hyperbolic statements to FUD-up the debate or humiliate underinformed artists into doing things their way. Is creative work inherently "worthless" if you can't immediately apply a price tag to it? Why does it all boil down to "price" and "control"?

But the most irritating aspect of this so-called "debate" is the hypocrisy. All this effort on "behalf" of artists is nothing more than a completely condescending effort to save "ignorant" artists from themselves. And for what? A chance to play ball with a bunch of gatekeepers who care more for their profit margins and quarterly sales than they do about 99% of the artists they "represent?" It's one thing to run your own industry into the ground. It's quite another when you disparage other options solely to benefit your own system.

Nobody does art to get rich

I mean, unless your really lucky. And probably dead, which greatly increases the scarcity of one's work. As an artist, I'm kind of insulted by these content aggregators (well, gatekeepers that are becoming more and more just content aggregators) who are claiming to represent me.

I wonder if I can sue for that...

Anywho, I do give away free swag, because I like free swag and lisencing something under CC0 is a way to give back.

Price and Control

"Is creative work inherently "worthless" if you can't immediately apply a price tag to it? Why does it all boil down to "price" and "control"? "

Because thats all copyright IS now. Its not SUPPOSED to be, if you follow the constitution and the entire reason FOR copyright, but it has been perverted by big media and special interests to their benefit at the expense of the public via the exploitation of the very creative people who are the ones who SHOULD be benefiting from it.

Anyone involved in marketing who is trying to spread obvious FUD about Creative Commons and has the audacity to call their service Viralfier seems to have a conflict of interest in providing said "advice."

Aside from that issue, money really makes art seem worth less. Not worthless, just having less worth than it would. I value my art, which is why I give it away. I value the creative process, which is why I share it with others and encourage them to use their creativity to reinvent what I've formulated from all the disparate sources of inspiration I've "stolen" ideas from in the natural process we call human experience.

Comparing klaatu42's 385,000 subscribers to IcePrincessXXIV's 600 is barely a semi-valid comparison and only if all the subscribers were gained as a result of the one video. I'm going to guess that they weren't.

Re:

Re:

Don't tell me that the AC with the hat made entirely of ass who criticized the wrong post author is now critiquing someone else's "criticism."

(May I direct your attention to the quotation marks around "criticism." We'll get back to those.)

1. "The guy with the extra chromosome is not who you think he is.

2. RE: ever/evar. I was quoting Scott Burke's own headline for the benefit of the readers who weren't interested in clicking through to the source material and experience for themselves the meme-riffing "cleverness" that is Scott's headline. Quoting someone is not criticism. (Hence the quotation marks above. Also hence the quotation marks around "cleverness," indicating that it is anything but.)

3. Also this thing, which may enlighten you as to the existence of an "on-purpose" misspelling of "ever." Try to maintain your focus. It runs about 40-45 words spread over three definitions.

4. I don't know how long you've been holding onto that particular gem ("wrong list of Senators"), but I hope it's been at least several weeks. It must have been tough sitting on this powderkeg, waiting for Mike (or whoever you think is "chromosome +") to slip up just once so you could tear his whole world apart with this one devastating line. And now you've wasted it on a know-nothing underling (who you could have insulted simply for being "not Mike" or "not funny") by hastily drawing the wrong conclusions (presumably in crayon).

Re: Re: Re: Re:

Tim, all I can say is don't give up your day job. I know you are trying hard, but every one of your posts has some sort of basic failure in it that makes it hard to take you seriously.

Your two reasons are incorrect in many ways, but let's try just to hit them on their face, and work from there:

1) Art doesn't get used up. Rather, once something is expressed (say a painting), there is little gained in society for someone else to paint the exact same thing. Lithographs of the original work (signed and numbers, preferably) would be much preferable and have a higher value to most people compared to a replication.

2) There is no competition for free, especially when the free is the only product that you sell. The free business model likely only works when it has very low costs to acquire the free product. The people who make the actual content are stuck with costs that put them in a non-competitive position. It removes the incentive to create the content in the first place, which hurts both in the end.

So don't quit your day job (or quit school if that his what you are doing).

Re:

Here's one thing: for artists, very often, the "incentive to create the content in the first place" comes from somewhere other than financial consideration. I know this is completely alien to some folks, but it's true. I like to sell my paintings. I also love to make them, whether they sell or not. So, financial incentive or no, I keep making. Can you believe it? Believe it. Believe this, too: art doesn't require competition at all. It only requires make. If you don't get this, you don't get it--so stop talking out of your ass about it as if art can be reduced to B-school modeling.

Re:

I appreciate your concern, but I work two (2) day jobs, seven days a week (excluding major holidays -- and since neither job is with the post office, I mean only major holidays). I'm not in school. (See also: working seven days a week.)

I don't get paid for writing. Not here. Not at the other places I've been published. And there's certainly nothing rolling in over at my oft-neglected blog. But I'm still writing. Go figure.

Let's get to my failures. (I was really tempted to use quotation marks on the last word, but I'll go ahead and ride it out.)

1.) You're correct. There is little gained in society for someone else to do exactly the same thing. I never claimed that. If someone remixes a track (even something CC-licensed) and it makes bank, the original doesn't cease to exist, nor does it logically follow that there is no market for the original.

In your example... well, we can't really use your example. CC licensing is not permission for someone to take someone's artwork and sign their name to it. That's not the intent at all. Even at it's most liberal (CC-BY), you can share the artwork as long as you attribute it. You can't just say "I made this" and walk off with the money. So, whatever intrinsic value there is in the original remains with the original.

Let's use another example: derivative works.

Someone grabs your CC-licensed "Mona Lisa," draws a mustache on it and sells the hell out of it. The attribution is still there, linking the original back to the creator. Now, an un-mustached "Mona Lisa" may not be as popular as the derivative work, but that's hardly the fault of the artist doing the "remix."

Now, your example does work, but has nothing to do with CC licensing. Signed and numbered lithographs from the original artist will be worth more and have a higher value to most people. This is correct. Unfortunately, this doesn't really refute anything I said. If anything, it confirms it. When I said "art gets used up," I was drawing a facetious inference from statements made by CC licensing opponents.

2.) There is no competition for free, especially when the free is the only product that you sell. Exactly. And nobody at this site, not even me, is going to tell you differently. But your argument falls off the rails when you start claiming "free" is a business model. It isn't. It can be part of one, but it can never be the whole thing. There's nothing in this post that indicates "free" is a business model.

My argument was about letting artists who want to release their work for free should be allowed to, rather than forced, coerced or heavily nudged towards regular old copyright.

As for "free" removing the incentive to create content? It doesn't. Everyone creating art in a digital medium (music, books, software, movies, etc.) already competes with free whether they want to or not.

These major industries are all competing with piracy and they certainly don't want to. But they're still selling their products as well. It may not be as much as they're used to, but they're doing it. They have no choice. They think they do, hence all the legislative arm-twisting and courtroom appearances, but all that time, money and effort would be better spent building their business, rather than trying to kill off something that won't be killed.

You can argue that a race to the bottom in prices and the attendant "free" remove the incentive to create but you won't get very far. If that were the case (and sunk cost were that much of a factor), no one would be creating and that's obviously not the case. If you need any proof of that, just read some of the other comments in the thread.

Also, I'll add in my own personal CASE IN POINT. I work two jobs but I still write in my extremely limited spare time. I don't know whether I'll ever make money writing (and I realistically believe I probably won't), but the 95% surety that I'll never "monetize" my writing hasn't stopped me. In fact, I've written more in the past two years than I have in my previous 30+.

Even though I think there's no chance of making a living doing what I love, here's two things you'll never see me do:

1.) Stop writing.
2.) Complain about doing it for free.

This writing gig at Techdirt allows me to write for a website I respect and one that I've followed for over 4 years. That's payment enough. The possibility of building from a larger platform than my personal blog is a bonus. The opportunity to interact with people all over the world is the juice.

So, if nothing else, don't push people out of using a CC license just because it goes against how you believe art should be distributed or "valued." It's their artwork. They should be able to give it away or set it on fire or charge $1 million for it if they want to.

And please, various ACs, please don't encourage me to not give up my day job. I've already got plenty of those. If you think I suck, then just say so. It pretty much boils down to the same thing. And as for every post having "some sort of basic failure"? Click on my profile and start building me a list. I'm very curious to see this collection of errors.

Points 3 and 4 deal with two familiar "arguments," the first being that if you give something away for free, you obviously think your artwork is worth nothing. This fallacy is hardly worth arguing but can anyone out there think of anything valuable that's being given away for free as part of a hugely successful business model? (Try Googling it.)

Been there, done that

This seems like Deja Vu.

A decade ago we heard nearly identical arguments about why open source licensing is bad.

(Please bear with me for just a moment . . .)

Now open source is taking over the world. Just today, industry news rags printing that Apple is worth more than Microsoft + Intel combined. Apple's Mac OS and iOS both are built on what? Ta da . . . open source! And their development tools? Open source. Their browser? Etc, etc.

Android is built on open source. Lots of it. HP's Web OS is built on Linux.

The open source Linux is used in things all around us. WiFi routers everywhere. TiVo. Roku. In fact, most set top boxes. Lots of television sets, and I'm not just talking about "smart" ones that have Android or GoogleTV. Personal media players. DVD players. Amazon Kindle is Linux. Barnes & Noble's Nook is Android which is also Linux. GPS navigators such as both Tom Tom and Garmin both run Linux. Almost anything with an embedded web server runs Linux and other open source, for example a printer that has its own internal web server for setup. Just what do you think is running that web server inside of a printer? Digital picture frames, digital cameras, etc. If it has a screen with a UI, it almost certainly has open source inside.

Let's just look at TV's for a moment. Go here:http://products.sel.sony.com/opensource/
and look at Sony's open source distribution service.
Click Televisions. Stop, catch breath. That's a lot of television sets since 2003 that run Linux (eg, open source).

Supercomputers. Servers. Google's and others' entire infrastructure is built on open source. Stock exchanges such as both London and NYSE new systems built on open source Linux.

My point: gee considering the same arguments on the evils of open source are now being used for CC licensing, I can't wait to see what innovations and creativity will happen as a result of CC licensed material.

CC licensing and the like

Okay, while I like music (and at one time bought a lot of records, listened to music on the radio religiously, etc. - but then it became a "don't listen unless you pay", and I stopped listening (or going to the movies, or ...).
In either case, I hardly see "Idle Americans" as being of any great importance - sometimes well paid, but so what?
At one time, I designed a state of the art module known as the BCD-BINARY and BINARY-BCD converter - crucial to the industry at that time. Did my employer make me wealthy? OF COURSE NOT! They PAID ME to do that sort of thing, and paid me well! WHY WOULD THEY DO ANY MORE? Incidentally, it became a often cited matter of IP law, eventually.

I feel the same way about "Idle Americans" (or Idle whoever), fair pay for doing your best; not "now I am the center of the Universe"-type thinking!

Re: what's free?

I will say this, though:

I'm a little tired of people who think that I should be thrilled to give my artwork away, or to let them show it as part of their corporate event. "It's great exposure" is a bunch of shit. It means that lots of people will be exposed to the fact that my work is available for free. Yes, I realize that this conflicts in some ways with my above reply to the "incentives" argument, but it's different in important ways--specifically, there is a big difference between my being perfectly happy (MBAs might term it "self-incented") to make work for no money and my feelings about others trying to exploit it for their gain for no money. And here's the rub: the more work that's out there for free, the more the perception is reinforced that all art should be available for free and that artists should be thrilled to have their work seen and that that's gain enough. Man, just because I make it for free doesn't mean that you get to use it for free. I can let you or I can not let you, but please don't expect it just because someone else (or even I) let you do that some other time. SO there is an element of probably unintentional undercutting here--when a critical mass of creators lets the public use their stuff for free, the expectation is raised that it's all like that--that Corporation X is absolutely blameless for expecting me to paint their foyer for free, to show up and supply all the materials, and even to cover up my work when they tire of it. My free make doesn't equal your free use.

"Man, just because I make it for free doesn't mean that you get to use it for free"

Hi Tim,

Thanks for joining the discussion about this important topic (licensing and artist rights).

I wanted to take an opportunity to clear up what I think are some misconceptions in your post about my viewpoint and what we are doing at Viralifier.

First of all, we have no intentions of being any sort of a gatekeeper. What we want to do is give individual content creators *more control* over what happens with their work, and the ability to earn royalties from it *should they choose to*, while still letting it be *as free as they want it to be*.

The problem, I think, is that we are living with the two copyright extremes that are currently available to artists and authors of work.

1) The locked-down, corporate, confusing, legal world of copyright that we have lived with for the last hundred years
2) Free-wheeling, blunt-force, take my art and give me nothing when you use it licenses like Creative Commons and public domain.

I imagine a third road ... which we believe is inevitably where this industry will go ... which allows artists to *retain* rights to their art (as easy as customizing your privacy settings on Facebook) while still *encouraging and facilitating* widespread use and enjoyment of it. I want to protect artists, not stifle them. I believe that a happy medium can be found, where you as an artist can leverage the incredible network effects of today's technology without giving up essentially all rights to how your work is used.

Just as you say art is not a zero-sum game, I believe that licensing rights are not an either-or game.

I also happen to be an artist myself - I play bass in a garage rock band called The Baketones. So, I am very familiar with what it's like to create art, and create it for the love of it, not for money. That said, if some big corporation wants to use our music for a TV commercial, damn straight we want to get paid for it! Even more than that, have some say in how it's used! If we were to license our work under Creative Commons, any corporation could use it without our approval, perhaps in a way which we are morally opposed to - completely undermining us and our art. From that perspective, Creative Commons licenses could be very harmful to artists who care about how and what context in which their art is used. (which, I dare to assume, would be most)

I think the last commenter, dwg, makes the best case for a new way to look at licensing moving forward - "Man, just because I make it for free doesn't mean that you get to use it for free. I can let you or I can not let you, but please don't expect it just because someone else (or even I) let you do that some other time.

...

My free make doesn't equal your free use."

I found the article and comments very interesting. Thanks for taking on this subject and helping move this very important discussion forward. I'm probably going to turn this comment into a follow-up blog post.

Re: "Man, just because I make it for free doesn't mean that you get to use it for free"

Scott -

Thanks for stopping by to give us your viewpoint. I agree with you about the two extremes of licensing -- up to a point.

The locked-down copyright road has been standard operating procedure for so long that many artists don't realize another alternative exists, should they want to handle their artwork another way. Highlighting the negative aspects of Creative Commons licensing is helpful in making that decision, but many of those doing the highlighting have an ulterior motive (the "gatekeeping" aspect).

The other problem is that copyright is so ingrained in the art world at this point that even trying to make your artwork free to use is a logistical nightmare.

Having to constantly check and double-check whether you're allowed to build on or share someone else's artwork hampers the creative process and makes it more about compliance and permission that creativity. CC licensing alleviates a lot of that.

A third option would be better and a lot of that can be found in other forms of CC licensing. Youtube only offers one type at this point (attribution only) and my guess is that it will stay that way for awhile. Once other versions of CC licensing come into play, they'll be expected to police uploads for non-copywritten (but CC licensed) work, and I can't imagine they're looking forward to whatever effort will be needed to tweak their scanning software.

But a third option is still going to remain a pipe dream until Creative Commons is treated as an equitable solution. And there are a whole lot of people who wish it would just go away.

If a person wants to control the use of their artwork, then by all means, they should use a different license. But if they want to allow it to used freely, that option should be available. I think a lot of the push towards copyright falls under the assumption that with copyright, you'll make money with your work, whether it's through third-party licensing or in the courtroom.

Personally, I'd like to see more CC licensing because I think it moves art forward faster. With copyright, the chilling effect of possible litigation is holding this back. I'm not saying that everyone should take whatever they want whenever they want, but rather that this licensing is a vital addition to the creative process, and I hate to see it getting passed off as a non-option because it allows too much free use. The loudest opponents of CC licensing are usually those who have already hitched their wagon to copyright and feel this somehow makes their contributions "worthless."

I'm glad you're looking towards a future option that will blend the two options, but I have a problem with Creative Commons being dismissed as somehow damaging not only to existing licensing processes, but artists in general.

Thanks again for your thoughts on this and I'm looking forward to your next post.

"Man, just because I make it for free doesn't mean that you get to use it for free."

Hi Tim,

Thanks for joining the discussion about this important topic (licensing and artist rights).

I wanted to take an opportunity to clear up what I think are some misconceptions in your post about my viewpoint and what we are doing at Viralifier.

First of all, we have no intentions of being any sort of a gatekeeper. What we want to do is give individual content creators *more control* over what happens with their work, and the ability to earn royalties from it *should they choose to*, while still letting it be *as free as they want it to be*.

The problem, I think, is that we are living with the two copyright extremes that are currently available to artists and authors of work.

1) The locked-down, corporate, confusing, legal world of copyright that we have lived with for the last hundred years
2) Free-wheeling, blunt-force, take my art and give me nothing when you use it licenses like Creative Commons and public domain.

I imagine a third road ... which we believe is inevitably where this industry will go ... which allows artists to *retain* rights to their art (as easy as customizing your privacy settings on Facebook) while still *encouraging and facilitating* widespread use and enjoyment of it. I want to protect artists, not stifle them. I believe that a happy medium can be found, where you as an artist can leverage the incredible network effects of today's technology without giving up essentially all rights to how your work is used.

Just as you say art is not a zero-sum game, I believe that licensing rights are not an either-or game.

I also happen to be an artist myself - I play bass in a garage rock band called The Baketones. So, I am very familiar with what it's like to create art, and create it for the love of it, not for money. That said, if some big corporation wants to use our music for a TV commercial, damn straight we want to get paid for it! Even more than that, have some say in how it's used! If we were to license our work under Creative Commons, any corporation could use it without our approval, perhaps in a way which we are morally opposed to - completely undermining us and our art. From that perspective, Creative Commons licenses could be very harmful to artists who care about how and what context in which their art is used. (which, I dare to assume, would be most)

I think the last commenter, dwg, makes the best case for a new way to look at licensing moving forward - "Man, just because I make it for free doesn't mean that you get to use it for free. I can let you or I can not let you, but please don't expect it just because someone else (or even I) let you do that some other time.

...

My free make doesn't equal your free use."

I found the article and comments very interesting. Thanks for taking on this subject and helping move this very important discussion forward. I'm probably going to turn this comment into a follow-up blog post.

"Man, just because I make it for free doesn't mean that you get to use it for free"

Hi Tim,

Thanks for joining the discussion about this important topic (licensing and artist rights).

I wanted to take an opportunity to clear up what I think are some misconceptions in your post about my viewpoint and what we are doing at Viralifier.

First of all, we have no intentions of being any sort of a gatekeeper. What we want to do is give individual content creators *more control* over what happens with their work, and the ability to earn royalties from it *should they choose to*, while still letting it be *as free as they want it to be*.

The problem, I think, is that we are living with the two copyright extremes that are currently available to artists and authors of work.

1) The locked-down, corporate, confusing, legal world of copyright that we have lived with for the last hundred years
2) Free-wheeling, blunt-force, take my art and give me nothing when you use it licenses like Creative Commons and public domain.

I imagine a third road ... which we believe is inevitably where this industry will go ... which allows artists to *retain* rights to their art (as easy as customizing your privacy settings on Facebook) while still *encouraging and facilitating* widespread use and enjoyment of it. I want to protect artists, not stifle them. I believe that a happy medium can be found, where you as an artist can leverage the incredible network effects of today's technology without giving up essentially all rights to how your work is used.

Just as you say art is not a zero-sum game, I believe that licensing rights are not an either-or game.

I also happen to be an artist myself - I play bass in a garage rock band called The Baketones. So, I am very familiar with what it's like to create art, and create it for the love of it, not for money. That said, if some big corporation wants to use our music for a TV commercial, damn straight we want to get paid for it! Even more than that, have some say in how it's used! If we were to license our work under Creative Commons, any corporation could use it without our approval, perhaps in a way which we are morally opposed to - completely undermining us and our art. From that perspective, Creative Commons licenses could be very harmful to artists who care about how and what context in which their art is used. (which, I dare to assume, would be most)

I think the last commenter, dwg, makes the best case for a new way to look at licensing moving forward - "Man, just because I make it for free doesn't mean that you get to use it for free. I can let you or I can not let you, but please don't expect it just because someone else (or even I) let you do that some other time.

...

My free make doesn't equal your free use."

I found the article and comments very interesting. Thanks for taking on this subject and helping move this very important discussion forward. I'm probably going to turn this comment into a follow-up blog post.

Panovax connects you directly with 3rd party advertisers (getting around youtube revenue splits). Then they re-post your videos on youtube, viddler, and other networks with a commercial before your clips. http://www.panovax.com/Page/CreatorCreatePage